Part 1 - The High Court and the Court of Appeal
SECTION 60. Establishment of High Court.
(1) There shall be a High Court, which shall be a superior court of record, and which shall subject to section 60A have unlimited original jurisdiction in civil and criminal matters and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law.
(2) The judges of the High Court shall be the Chief Justice and such number, not being less than eleven, of other judges (hereinafter referred to as puisne judges) as may be prescribed by Parliament.
(3) The High Court shall be duly constituted notwithstanding a vacancy in the office of a judge of that Court.
(4) The office of a puisne judge shall not be abolished while there is a substantive holder thereof.
(5) The High Court shall sit at such places as the Chief Justice may appoint.
SECTION 60A. Establishment of Interim Independent Constitutional Dispute Resolution Court.
(1) Notwithstanding section 60 there shall be an Interim Independent Constitutional Dispute Resolution Court which shall have exclusive original jurisdiction to hear and determine all and only matters arising from the constitutional review process.
(2) The judges of the Court shall be nine judges of whom –
(a) three shall be non citizens who are qualified to be appointed judges or have served as judges of the highest court in any jurisdiction within the Commonwealth nominated by the Parliamentary Select Committee; and
(b) six shall be recruited through a competitive process by the Parliamentary Select Committee and upon approval by the National Assembly be appointed by the President in consultation with the Prime Minister.
(3) For the avoidance of doubt, the Court is not a division of the High Court.
(4) A person shall be qualified to be appointed a judge of the Court if he –
(a) is, or has been, a judge of a court having unlimited jurisdiction in civil and criminal matters within the Commonwealth; or
(b) is an advocate of the High Court of Kenya of not less than ten years standing; and
(c) is a person of high moral character and integrity.
(5) Subject to this section, the office of a judge of the Court shall become vacant if circumstances arise that, if he were not a judge, would cause him to be disqualified to be appointed as such.
(6) Subject to subsection (7) judge of the Court may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with this section.
(7) A judge of the Court shall be removed from office if the National Assembly so resolves, by resolution supported by a majority of all its members (excluding the ex-officio members)
(8) In the exercise of its function under this Constitution, the Court shall not be subject to the direction or control of any other person or authority.
(9) Subject to this Constitution and without prejudice to subsection (7), Parliament may provide for the orderly and effective conduct of the operations and business of the Court and for the powers of the Court and regulate its procedure.
(10) The Court may, subject to its rules of procedure, act notwithstanding a vacancy in its composition or the absence of a judge.
(11) The Court shall stand dissolved twenty four months after the commencement of this section or three months after the promulgation of a new Constitution, whichever is the earlier.
SECTION 61. Appointment of judges of High Court.
(1) The Chief Justice shall be appointed by the President.
(2) The puisne judges shall be appointed by the President acting in accordance with the advice of the Judicial Service Commission.
(3) A person shall not be qualified to be appointed a judge of the High Court unless -
(a) he is, or has been, a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or in the Republic of Ireland or a court having jurisdiction in appeals from such a court; or
(b) he is an advocate of the High Court of Kenya of not less than seven years standing; or
(c) he holds, and has held for a period of, or for periods amounting in the aggregate to, not less than seven years, one or other of the qualifications specified in paragraphs (a), (b), (c) and (d) of section 12 (1) of the Advocates Act as in force on 12th December, 1963.
(4) If the office of Chief Justice is vacant, or if the Chief Justice is for any reason unable to discharge the functions of his office, the President may appoint a puisne judge to act as Chief Justice, and a puisne judge so appointed shall exercise the functions of that office or until a person is appointed to and assumes the functions of that office, or until the Chief Justice resumes those functions, as the case may be, or until his appointment is sooner revoked by the President.
(5) If the office of a puisne judge is vacant or if a puisne judge is appointed to act as Chief Justice or is for any reason unable to discharge the functions of his office, or if the Chief Justice advises the President that the state of business in the High Court so requires, the President, acting in accordance with the advice of the Judicial Service Commission, may appoint a person who is qualified to be appointed a judge of the High Court to act as a puisne judge; and a person may act as a puisne judge notwithstanding that he has attained the age prescribed for the purposes of section 62 (1).
(6) A person appointed under subsection (5) to act as a puisne judge shall, subject to subsections (4) and (7) of section 62, continue to act for the period of his appointment or, if no period is specified, until his appointment is revoked by the President, acting in accordance with the advice of the Judicial Service Commission, and may continue to act thereafter for so long as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that have already been commenced before him.
SECTION 62. Tenure of office of judges of High Court.
(1) Subject to this section, a judge of the High Court shall vacate his office when he attains such age as may be prescribed by Parliament.
(2) Notwithstanding that he has attained the age prescribed for the purposes of subsection (1), a judge of the High Court may continue in office for so long after attaining that age as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age.
(3) A judge of the High Court may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be removed except in accordance with this section.
(4) A judge of the High Court shall be removed from office by the President if the question of his removal has been referred to a tribunal appointed under subsection (5) and the tribunal has recommended to the President that the judge ought to be removed from office for inability as aforesaid or for misbehaviour.
(5) If the Chief Justice represents to the President that the question of removing a puisne judge under this section ought to be investigated, then -
(a) the President shall appoint a tribunal which shall consist of a chairman and four other members selected by the President from among persons -
(i) who hold or have held the office of judge of the High Court or judge of appeal; or
(ii) who are qualified to be appointed as judges of the High Court under section 61 (3); or
(iii) upon whom the President has conferred the rank of Senior Counsel under section 17 of the Advocates Act; and
(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to the President whether that judge ought to be removed under this section.
(6) Where the question of removing a judge from office has been referred to a tribunal under this section, the President, acting in accordance with the advice of the Chief Justice, may suspend the judge from exercising the functions of his office and any such suspension may at any time be revoked by the President, acting in accordance with the advice of Chief Justice, and shall in any case cease to have effect if the tribunal recommend to the President that the judge ought not to be removed from office.
(7) Where the question arises as whether the Chief Justice has become unable by reason of physical or mental infirmity to exercise the functions of his office or that his conduct ought to be investigated, then the President shall appoint a tribunal consisting of five members appointed by him in the manner provided under subsection (8).
(8) The tribunal appointed under subsection (7) shall consist of the following members -
(a) a person who holds or has held the office of Speaker of the National Assembly who shall be the chairman;
(b) two persons who hold or have held office as judges of appeal;
(c) one person upon whom the rank of Senior Counsel has been conferred by the President under section 17 of the Advocates Act; and
(d) the chairman of the Public Service Commission.
(9) When the question of removing the Chief Justice has been referred to a tribunal under this section he shall not exercise any of the functions of his office pending the decision of the tribunal; but he will resume those functions if the tribunal recommends to the President that the Chief Justice ought not be removed from office.
SECTION 63. Oaths to be taken by judges of High Court.
A judge of the High Court shall not enter upon the duties of his office until he has taken and subscribed the oath of allegiance and such oath for the due execution of his office as may be prescribed by Parliament.
SECTION 64. Establishment of Court of Appeal.
(1) There shall be a Court of Appeal which shall be a superior court of record, and which shall have such jurisdiction and powers in relation to appeals from the High Court as may be conferred on it by law.
(2) The judges of the Court of Appeal shall be the Chief Justice and such number, not being less than two, of other judges (herein referred to as judges of appeal) as may be prescribed by Parliament.
(3) The foregoing provisions of this Part shall apply in respect of the judges of appeal as they apply to puisne judges.
(4) Where a puisne judge has been appointed as a judge of appeal he may continue to exercise the functions of a puisne judge to enable him to complete proceedings in the High Court that were commenced before him prior to his being so appointed.
Part 2 - Other Courts
SECTION 65. Establishment of other courts.
(1) Parliament may establish courts subordinate to the High Court and courts-marital, and a court so established shall, subject to this Constitution, have such jurisdiction and powers as may be conferred on it by any law.
(2) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before a subordinate court or court-martial, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by those courts.
(3) The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by subsection (2).
SECTION 66. Kadhis' courts.
(1) There shall be a Chief Kadhi and such number, not being less than three, of other Kadhis as may be prescribed by or under an Act of Parliament.
(2) A person shall not be qualified to be appointed to hold or act in the office of Kadhi unless -
(a) he professes the Muslim religion; and
(b) he possesses such knowledge of the Muslim law applicable to any sect or sects of Muslims as qualifies him, in the opinion of the Judicial Service Commission, to hold a Kadhi's court.
(3) Without prejudice to section 65 (1), there shall be such subordinate courts held by Kadhis as Parliament may establish and each Kadhi's court shall, subject to this Constitution, have such jurisdiction and powers as may be conferred on it by any law.
(4) The Chief Kadhi and the other Kadhis, or the Chief Kadhi and such of the other Kadhis (not being less than three in number) as may be prescribed by or under an Act of Parliament, shall each be empowered to hold a Kadhi's court having jurisdiction within the former Protectorate or within such part of the former Protectorate as may be so prescribed:
Provided that no part of the former Protectorate shall be outside the jurisdiction of some Kadhi's court.
(5) The jurisdiction of a Kadhi's court shall extend to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion.
SECTION 67. References and appeals on interpretation of Constitution.
(1) Where a question as to the interpretation of this Constitution arises in proceedings in a subordinate court and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if a party to the proceedings so requests, refer the question to the High Court.
(2) Where a question is referred to the High Court in pursuance of subsection (1), the High Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.
(3) When the High Court is determining a matter in connexion with a reference to it under subsection (1) (other than an interlocutory matter) it shall be composed of an uneven number of judges, not being less than three.
(4) Where a subordinate court or a court-martial has given a final decision in civil or criminal proceedings on a question as to the interpretation of this Constitution , and the question has not already been referred to the High Court under subjection (1) of this section or under section 84 (3), an appeal shall lie against that decision as of right to the High Court, either -
(a) direct; or
(b) if -
(i) an appeal lies as of right from the decision to another subordinate court or court-martial; or
(ii) an appeal lies from the decision to another subordinate court or court-martial with the leave of the court that gave the decision or of some other court, and that leave has not been withheld, by way of that other subordinate court or court-martial.
Part 3 - The Judicial Service Commission
SECTION 68. Judicial Service Commission.
(1) There shall be a Judicial Service Commission which shall consist of -
(a) the Chief Justice as chairman;
(b) the Attorney-General;
(c) two persons who are for the time being designated by the President from among the puisne judges of the High Court and the judges of the Court of Appeal; and
(d) the chairman of the Public Service Commission.
(2) In the exercise of its functions under this Constitution, the Commission shall not be subject to the direction or control of any other person or authority.
(3) Subject to this Chapter, the Commission may make regulations regulating its own procedure and, with the consent of the President, may confer powers or impose duties on any public officer or authority for the purpose of the discharge of its functions.
(4) Subject to any regulations made under subsection (3), the Commission may act notwithstanding a vacancy in its membership or the absence of a member, and its proceedings shall not be invalidated by the presence or participation of a person not entitled to be present at or to participate in those proceedings:
Provided that a decision of the Commission shall require the concurrence of a majority of all the members thereof.
SECTION 69. Appointment, etc., of judicial officers.
(1) The power to appoint persons to hold or act in an office to which this section applies (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in those offices and the power to remove those persons from office shall vest in the Judicial Service Commission.
(2) The Judicial Service Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate any of its powers under subsection (1) to any one or more of its members or to any judge of the High Court or to any person holding or acting in an office to which this section applies:
Provided that a power that relates to an office the holder of which is required to possess legal qualifications may not be delegated under this subsection except to one or more members of the Commission.
(3) The offices to which this section applies are -
(a) the office of Registrar or Deputy Registrar of the High Court;
(b) the office of the Chief Magistrate, the Principal Magistrate, the Senior Resident Magistrate, Resident Magistrate or District Magistrate;
(c) the office of any other person empowered to hold or be a member of a subordinate court exercising criminal jurisdiction;
(d) the office of Chief Kadhi and Kadhi; and
(e) such other offices of member of any court or connected with any court as may be prescribed by Parliament.
